By Joseph Sanders, LCAM, CMCA / Published March 2022
The writer Jon Foreman states, “What’s in a Word?” in a simple way. Words are the foundation upon which we build our lives. This holds true even for wonderful words like love, light, justice, honor, truth, joy, peace, redemption, happiness, or beauty. These are beautiful words, yet they are words we know only in part.
In the industry where we serve as community managers, using the correct words is critical when speaking or writing or even interpreting legalese. Documents such as the U.S. Constitution, statutes, articles of corporation, condominium bylaws, declarations, and rules/regulations are all often there for us to interpret. Being able to convey important attributes and details clearly and concisely is not always easy in the world of homeowners or condominium associations and their governing documents.
As with many documents authored by attorneys, when the applicable sentences are constructed, the intent can often be misinterpreted by laypersons. The wording sometimes causes confusion in terms of the intent. Three particular words that are often used in the homeowner/condominium industry are “may,” “will,” and “shall.” They are all similar in a call to action, but they each have very different meanings.
Let’s begin with “may.” The Oxford Dictionary defines this auxiliary verb as “expressing possibility.” This word appears often in condominium declarations, bylaws, and articles of corporation. An example would be, “The board of directors ‘may’ meet as often as required or by a set schedule.” This expresses possibility, which leaves options open.
The second example, “will,” is defined by Webster’s Dictionary as another auxiliary verb “used to express desire, choice, willingness or consent.” An example could be, “The board of directors ‘will’ meet every other month.” This too leaves open the possibility of options. “The board of directors will meet every other month. However, if they cannot….”
The third auxiliary verb that is so important in our industry is “shall.” Few people realize the finality of “shall.” The Oxford Dictionary defines this word as “imperative and infinitive.” The word leaves no room for options. It doesn’t mean might, maybe, at the first opportunity, or if or when we can. No discussion. It means IT MUST BE DONE! Example: “The board of directors ‘shall’ meet monthly” clearly means just that and nothing else.
This word is often brushed off and turned into “may” or “will.” This single word, SHALL, can cause many, many problems when it is not taken at its meaning of “imperative and infinitive.” The King James Version of the Holy Bible uses the word “shall” over 6,700 times. Used by the Creator, we all know He “means what he says,” and it “shall” come to pass!
As we follow the spirit of a community’s covenants, conditions or restrictions, declarations, and bylaws, the conclusion of that word means that it shall, without discussion, BE DONE! This falls within the category of “literal rule” or “imperative command.” The Florida Bar states that in legal drafting, one should reserve “shall” for imposing a duty upon a party to the agreement.
For instance, drafters frequently use “shall” to describe discretionary terms. “Shall” is sometimes used incorrectly to express a party’s right or to grant permission. A sign that I recently noticed at a nearby condominium read, “Residents shall use the pool from 9:00 a.m. to 7:00 p.m.” Holy smokes! That sounds exhausting! I suspect the writer could have meant “may” instead of “shall.” Do you see how important these three words are in conveying intent?
Therefore, when you as a community manager are guiding your board or committee toward a specific task, rule, project, or duty involving governing documents, be especially cognizant of these three words—“may,” “will,” or “shall”—and make sure that you are following the correct definition for the task at hand.
Recalling that one word, whichever of the three it is, can mean all the difference in what is to be done or what can be done (intent). Never forget that imposing and oh so important word, “shall.” Remember the difference between these words and… YOU SHALL NOT GO WRONG!
Joseph Sanders, LCAM, CMCA
Senior Community Association Manager, ICAMCO
Joseph is a Sr. Community Association Manager with ICAMCO, a Vesta Property Management Company. He has been an LCAM for the past 20 years, managing high-rise properties in Florida from the Panhandle to Key West.